Hagood v. Dial

• Decision Date: 01 January 1875
• Citation: 43 Tex. 625
• Parties: W. A. HAGOOD v. HUGH DIAL.
• Court: Texas Supreme Court

43 Tex. 625

W. A. HAGOOD

v.HUGH DIAL.

Supreme Court of Texas.

1875.

APPEAL from Anderson. Tried below before the Hon. M. H. Bonner.

Reagan, Greenwood & Gooch, for appellant, cited Cook v. Southwick, 9 Tex., 620;Taylor v. Hall, 20 Tex., 215;Drake v. Brander, 8 Tex., 351; Tinnin v. Weatherford, Dallam, 590; 25 Tex. Supp., 67, Compton v. Western Stage Co.

E. W. Bush, for appellee.

GOULD, ASSOCIATE JUSTICE.

Hagood brought this suit in the District Court of Anderson county to recover an alleged debt, stating in his petition that Dial was a resident of that county. Dial answered under oath, alleging that before and at the commencement of the suit he resided and had his domicile in the county of Parker, and not in the county of Anderson. This plea is marked filed November 27, 1874, and immediately after it in the record are two other papers also marked filed November 27, 1874, and signed by counsel for defendant; the first being exceptions general and special to the petition, followed by a general denial; the second being a motion to dissolve an attachment which had been sued out, and a motion to abate the suit for want of jurisdiction as shown by plea in abatement. Each of these papers commenced with: “And now comes the defendant,” and contained no formal reservation of defendant's right to be heard on his plea in abatement. On November 28th the plaintiff filed exceptions to the plea in abatement on the ground that it was not filed in due order of pleading; that it did not show in what court it was filed, and that it did not show that grounds did not exist authorizing suit in Anderson county, although, or if, defendant did not reside therein. The plaintiff then proceeds in the same paper, apparently without leave of court, and, without styling it as an amendment, to state, amongst other things, that defendant, if he did not reside in Anderson county, was a transient person, and that his last-known residence was in said county. At the ensuing April term of court defendant, also apparently without leave, pleaded under oath, “in abatement to the amended petition,” denying that he was a transient person, reiterating that he resided in Parker county, and further saying that he did not bind or obligate himself to pay plaintiff any part of his demand in Anderson county. At the same time he again filed exceptions to the petition as amended, and answered to the merits. At a subsequent day of the same term the plaintiff excepted to this last plea because of the previous appearance of defendant by...